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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Goliver v McAllister (11/02/2001) sp-5497

Goliver v McAllister (11/02/2001) sp-5497

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878, e-mail corrections@appellate.courts.state.ak.us.


             THE SUPREME COURT OF THE STATE OF ALASKA

SANDRA GOLIVER,               )
                              )    Supreme Court No. S-9977
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3PA-98-107 PR
                              )
MARVIN and PATRICIA           )    O P I N I O N
MCALLISTER,                   )
                              )
             Appellees.       )    [No. 5497 - November 2, 2001]
______________________________)

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer, Beverly W. Cutler, Judge.

          Appearances:  Sandra Goliver, pro se, Palmer. 
Tara N. Logsdon, Golter & Logsdon, PC, Wasilla, for Appellees.

          Before:  Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  

          MATTHEWS, Justice.

          On August 25, 2000, Sandra Goliver moved to set aside the
March 8, 1999 adoption of her three-year-old son by her parents,
Marvin and Patricia McAllister.  Goliver contended that the
adoption was a sham entered into to protect the child from his
biological father who she believed had sexually abused other
children.  Without an evidentiary hearing, the trial court ruled
that Goliver's motion was barred by the one-year period of
limitations set out in AS 25.23.140(b). [Fn. 1]  Goliver appeals,
contending, among other things, that the court should have
conducted an evidentiary hearing in order to determine whether her
motion was time-barred.  We agree and remand the case to the
superior court for such a hearing.
          The issue of whether a period of limitations has expired,
like most other fact-based issues, may be determined without an
evidentiary hearing only when there are no genuine issues of
material fact. [Fn. 2]  Here the critical issue is whether the
McAllisters had "taken custody" of Tate more than a year prior to
Goliver's motion to set aside the adoption. [Fn. 3]  This calls for
a legal conclusion that must be based upon the facts regarding the 
parties' conduct, as well as reasonable inferences that may be
drawn from these facts.  In deciding whether there are genuine
issues of fact requiring a hearing, reasonable inferences must be
drawn in favor of the party seeking the hearing. [Fn. 4]  
          In the present case some of the facts relevant to the
custody of Tate are undisputed.  Goliver lived next door to the
McAllisters.  Both before and after the adoption, and before June
15, 2000, when the McAllisters were said to have "removed [Tate]
from [Goliver's] care," Tate spent most days with the McAllisters
and most nights with Goliver.  He generally ate three meals a day
with the McAllisters.  This arrangement also applied to Goliver's
three daughters, who were being home-schooled by Patricia
McAllister.  At the same time, it was Goliver who applied for
Tate's 1999 and 2000 permanent fund dividends and filed his tax
returns for these dividends.  Goliver also applied for and received
Medicaid funds to pay for Tate's medical expenses. 
          Goliver affies conclusorily that "[a]fter the adoption,
Tate continued to live with me," and that "Tate did not live with
[the McAllisters]."  She characterizes her parents' role as that of
day care providers.  The McAllisters conclusorily affie that "we
have taken custody of Tate.  We did so immediately upon adopting
Tate."  They characterize Goliver's post-adoption relationship with
Tate as the exercise of visitation rights:  "[W]e have allowed
frequent visitation, primarily at night, so that Tate could spend
time with [Goliver] (who works during the day) and his sisters."
          In our view the uncontested facts above do not resolve
whether the McAllisters took custody of Tate.  The parties'
affidavits are not detailed.  The undisputed facts yield
conflicting interpretations, as the parties' conclusory affidavits
illustrate.  
          In Hernandez v. Lambert, we discussed the reasons for
"Alaska's stringent one-year limit on challenges to adoption
decrees." [Fn. 5]  We noted that "[a]doptive custody results in the
rapid development of lasting and powerful psychological ties
between adoptive parents and children, especially young children. 
Once formed, these bonds can seldom be severed without irreparable
damage to the child's well-being." [Fn. 6]  We also observed:
               Alaska's one-year filing limit embodies a
careful balance between competing interests: on one hand, the
interest of preserving "stability in a family relationship,
particularly when a young minor is involved"; on the other hand,
the interest of avoiding "the possible loss to a person whose
rights are cut off through fraud or ignorance."  Unif. Adoption Act
sec. 15, 9 U.L.A. 102-03 cmt. (1988).[ [Fn. 7]]
The evident reason for the not-taken-custody exception to the
strict one-year period is that undoing an adoption where the
exception applies involves either no risk or a reduced risk of
destabilizing a newly formed family or severing powerful
psychological ties to the adoptive parents. 
          The court on remand should be mindful of the above
purposes.  One important fact the court should explore on remand is
whether there were substantial changes in the parties' relationship
with Tate after the decree of adoption.  A related question which
may prove relevant is whether the McAllisters' relationship with
Tate following the adoption was materially different  from their
relationship with Goliver's daughters, whom they also cared for. 
The superior court may also seek to determine who paid for Tate's
food, clothing, medical care, and other necessaries and whether
this changed following the adoption.  By mentioning these issues we
do not imply that there may not be others that are also important. 
We also note that in deciding the ultimate issue as to when the
McAllisters took custody of Tate, the definition of "primary
physical custody" set out in Civil Rule 90.3(f) is of possible
relevance.
          For the above reasons the order of the superior court
denying Goliver's motion to set aside the adoption is VACATED and
this case is REMANDED for an evidentiary hearing in order to
determine whether the motion is time-barred, and if it is not, for
further proceedings. [Fn. 8] 


                            FOOTNOTES


Footnote 1:

     AS 25.23.140(b) provides:
                Subject to the disposition of an appeal,
upon the expiration of one year after an adoption decree is issued,
the decree may not be questioned by any person including the
petitioner, in any manner upon any ground, including fraud,
misrepresentation, failure to give any required notice, or lack of
jurisdiction of the parties or of the subject matter, unless, in
the case of the adoption of a minor the petitioner has not taken
custody of the minor, or, in the case of the adoption of an adult,
the adult had no knowledge of the decree within the one-year
period.


Footnote 2:

     See Pedersen v. Zielski, 822 P.2d 903, 908 (Alaska 1991).


Footnote 3:

     The parties assume that AS 25.23.140(b) means that the period
of limitations runs from the time the adoptive parents take custody
of the child.  This is a reasonable interpretation of the statute
and we accept it for the purposes of this case.  We note that the
statute might be read to mean that the one-year period starts with
the adoption decree if at any time before the challenge to the
adoption is filed the adoptive parents take custody of the child. 



Footnote 4:

     See Webb v. City and Borough of Sitka, 561 P.2d 731, 734
(Alaska 1977) ("[O]n a motion for summary judgment all inferences
from the underlying facts must be viewed in the light most
favorable to the party opposing the motion . . . ."). 


Footnote 5:

     951 P.2d 436, 442 (Alaska 1998).


Footnote 6:

     Id. at 441-42.


Footnote 7:

     Id. at 442.


Footnote 8:

     We have reviewed the other contentions of the appellant and
find them to be without merit.